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Articles by Brian Matsui
The Supreme Court Expands The Cost Of Doing Business: New Rules For Jurisdiction By Consent After Mallory?
Can a state require a company, as a condition of doing business in the state, to consent to being sued there for any and all claims? In Mallory v. Norfolk Southern Railway Co., 599 U.S. __ (2023), the Supreme Court concluded that such a requirement is consistent with the Fourteenth Amendment's due process clause. Mallory opens the door to a major increase in out-of-state corporations' exposure to suit—if states decide to walk through that door.
The Supreme Court Expands the Cost of Doing Business: New Rules for Jurisdiction by Consent After Mallory? | JD Supra
Can a state require a company, as a condition of doing business in the state, to consent to being sued there for any and all claims? In Mallory v. Norfolk Southern Railway Co., 599 U.S. __ (2023), the Supreme Court concluded that such a requirement is consistent with the Fourteenth Amendment’s due process clause. Mallory opens the door to a major increase in out-of-state corporations’ exposure to suit—if states decide to walk through that door.
Last Week In The Federal Circuit (March 13 – March 17): A reminder that motivation doesn’t need to be found in the prior art references themselves | JD Supra
The Court had a busy week as the weather begins to turn, and those with school-aged kids begin to plan for spring break. This week we look at the Court’s latest reminder that obviousness is a flexible analysis, so below we provide our usual weekly statistics and a brief discussion of our case of the week—our highly subjective selection based on whatever case piqued our interest. Precedential opinions: 5 Non-precedential opinions:8 Rule 36:4 Longest pending case from argument: Intel Corporation v.
Cost Of Doing Business? Supreme Court Scrutinizes Constitutionality Of Requiring Companies To Consent To General Personal Jurisdiction | JD Supra
In an important case that could blow the doors open on personal jurisdiction so that corporations can be subject to suit anywhere they do business, the Supreme Court heard oral argument on Tuesday. In Mallory v. Norfolk Southern Railway Co., the Court must decide whether Pennsylvania can require companies to submit to general personal jurisdiction as a condition of registering to do business in the state.
Will Your Appeal Have Argument Soon? Part II | JD Supra
Now that the Court is open to the public—not just for arguing counsel but for anyone to watch arguments and visit the Court—I thought it was time to take a look at argument timing again. Back in April 2021, I first looked because it seemed that cases were getting scheduled for argument more quickly (see post here). My perception was a reality, as cases were in fact being scheduled quicker when I compared argument timing year to year.
Last Week In The Federal Circuit (October 10 – October 14): Intrigue, Espionage, Judicial Review, and Administrative Law | JD Supra
The Supreme Court term has started, and the Court once again seems to be dipping its toes in the water with more CVSGs in 101 cases. Maybe this time the Court will take the plunge. For our case of the week—our highly subjective selection based on whatever case piqued our interest—we look at a case of international intrigue that discusses important principles of judicial review and an agency’s inherent authority to reconsider its own decisions.
Is It Ever Too Late To Be Rule 36’d? | JD Supra
Those that regularly practice before the Court know about Rule 36s. We’ve written about them before. It’s a one-line per curiam decision that generally comes a few days after oral argument: AFFIRMED. See Fed. Cir. R. 36. This post isn’t going to say anything about the merits of Rule 36s. That’s been well discussed many other places. One thing, of course, critics of the practice should keep in mind is how much they like their oral arguments.
Last Week In The Federal Circuit (August 15 – August 19): The Court Rebuffs Patent Owner’s Attempt To Read ANDA Application In Isolation | JD Supra
We’re now in the waning days of summer, and the Court’s activity last week somewhat reflected that: two decisions and a few orders. One of those orders was for something you don’t see often: an appeal being dismissed for an appellant missing the deadline to file its opening brief by 11 days. So fair warning: an appellant that doesn’t file an opening brief may have its appeal dismissed. But rather than write about that one-line order, we’re going to discuss instead a case about numbers.
Tailoring of Remedial Orders in View of the Public Interest | JD Supra
August 23, 2022 To embed, copy and paste the code into your website or blog: I. INTRODUCTION Per 19 U.S.C. § 1337 (“Section 337”), the International Trade Commission (“Commission”) can exclude articles that violate the section from importation into the United States, unless effects on the public interest factors justify not excluding the articles.
Last Week In The Federal Circuit (July 11-15): The FRAND vs. ITC Fight That Wasn’t | JD Supra
Precedential opinions: 3 Non-precedential opinions: 4 Rule 36: 1 Longest pending case from argument: Lanclos v. United States, No. 21-1750 (219 days) Shortest (non-Rule 36) pending case from argument: Koninklijke Philips N.V. v. Thales USA, Inc., No. 21-2106 (36 days) Case of the week: Koninklijke Philips N.V. v.
Last Week In The Federal Circuit (July 11-15): The FRAND Vs. ITC Fight That Wasn't - Patent - United States
Precedential opinions: 3 Non-precedential opinions: 4 Rule 36: 1 Longest pending case from argument: Lanclos v. United States, No. 21-1750 (219 days) Shortest (non-Rule 36) pending case from argument: Koninklijke Philips N.V. v. Thales USA, Inc., No. 21-2106 (36 days) Case of the week: Koninklijke Philips N.V. v.
Supreme Court Refuses (Again) to Jump Back into the 101 Fray | JD Supra
As we’ve written about multiple times, a petition for certiorari from the Federal Circuit’s starkly divided decision in American Axle has been pending at the Supreme Court for some time (see here, here, and here). Many thought this would be the case in which the Supreme Court finally provided some clarification on Section 101. After all, the Federal Circuit split six-to-six in denying rehearing, with opinions stating the need for revisiting the Supreme Court’s precedent.
Last Week In The Federal Circuit (June 21-24): Maintaining Confidence In Judicial Rulings In Cases Reviewed By The Federal Circuit | JD Supra
The Supreme Court dominated the news last week, and the Federal Circuit issued just four opinions. One of them was a doozy: to reinforce confidence in the judicial process, the Court vacated a $2 billion judgment that followed from a 22-day bench trial, with 26 witnesses, and over 300 exhibits. Below we provide our usual weekly statistics and a detailed discussion of this case of the week.
Who Wins, Who Loses – Still Worse To Be The Patent Owner On Appeal - Patent - United States
We've been updating our stats pretty frequently but haven't had a recent post about what—if anything—has changed in affirmance rates as more data has been compiled. So with basically 2½ years of data, I thought we could look again at affirmance rates across various different types of cases, mainly in the Court's patent docket. When I first did this about two years ago (here), I wasn't surprised by the high affirmance rate (particularly in PTAB appeals).
Who Wins, Who Loses – Still Worse To Be The Patent Owner On Appeal | JD Supra
We’ve been updating our stats pretty frequently but haven’t had a recent post about what—if anything—has changed in affirmance rates as more data has been compiled. So with basically 2½ years of data, I thought we could look again at affirmance rates across various different types of cases, mainly in the Court’s patent docket. When I first did this about two years ago (here), I wasn’t surprised by the high affirmance rate (particularly in PTAB appeals).
At Morrison & Foerster, Ketanji Brown Jackson Developed Her Supreme Court Chops
United States: At Morrison & Foerster, Ketanji Brown Jackson Developed Her Supreme Court Chops 10 March 2022 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
‘Knack For Picking Up Nuances': Ketanji Brown Jackson Emerges As Top Contender To Replace Breyer
United States: ‘Knack For Picking Up Nuances': Ketanji Brown Jackson Emerges As Top Contender To Replace Breyer 01 February 2022 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Brian Matsui spoke to the National Law Journal about Judge Ketanji Brown Jackson, a leading candidate to fill the seat of U.S. Supreme Court Justice Stephen Breyer, who announced his retirement this week.
Beyond The Holding: A Nuanced Look At The Federal Circuit's Patent Decisions, Episode 5 Original
United States: Beyond The Holding: A Nuanced Look At The Federal Circuit's Patent Decisions, Episode 5 20 January 2022 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Morrison & Foerster and the Berkeley Center for Law & Technology (BCLT) have teamed up to present a biweekly podcast addressing recent Federal Circuit decisions.
More IPR Constitutional Challenges & More Attorneys' Fees
United States: More IPR Constitutional Challenges & More Attorneys' Fees 06 December 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Morrison & Foerster and the Berkeley Center for Law & Technology (BCLT) have teamed up to present a bi-weekly podcast addressing recent Federal Circuit decisions.
Podcast: More IPR Constitutional Challenges & More Attorneys' Fees - Government, Public Sector - United States
United States: Podcast: More IPR Constitutional Challenges & More Attorneys' Fees 03 November 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Morrison & Foerster and the Berkeley Center for Law & Technology (BCLT) have teamed up to present a bi-weekly podcast addressing recent Federal Circuit decisions.
C.R. Bard Inc. V. Medline Industries, Inc.
United States: C.R. Bard Inc. V. Medline Industries, Inc. 22 October 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Brian Matsui argued in front of the US Court of Appeals for the Federal Circuit and won vacatur of three Patent Trial and Appeal Board decisions on obviousness. Listen to the full argument (Brian's argument begins at 0:45). Originally published 6 July 2021.
Beyond The Holding - A Nuanced Look At The Federal Circuit's Patent Decisions (Podcast) - Intellectual Property - United States
United States: Beyond The Holding – A Nuanced Look At The Federal Circuit's Patent Decisions (Podcast) 18 October 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Morrison & Foerster and the Berkeley Law & Technology Center (BLCT) have teamed up to present a bi-weekly podcast addressing recent Federal Circuit decisions.
Our Podcast With BCLT And The Comeback Kid: SRI v. Cisco Round II
United States: Our Podcast With BCLT And The Comeback Kid: SRI v. Cisco Round II 11 October 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. At Federal Circuitry, we've started discussing interesting Federal Circuit cases and developments with the Berkeley Center for Law & Technology in their Expert Series Podcasts. Please find the first episode discussing SRI International v.
Federal Circuit Denies Cibra Inc.'s Petition For Writ Of Mandamus
United States: Federal Circuit Denies Cibra Inc.'s Petition For Writ Of Mandamus 28 September 2021 by Deanne E. Maynard , Brian Matsui , Michael F. Qian , Michael Jacobs and Richard Hung Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. The Federal Circuit rejected a bid by cloud infrastructure company Densify to revive a jury's patent infringement verdict against Morrison & Foerster client VMware, Inc.
Early Hints About What Happens Next After Arthrex | JD Supra
Now that we have the Supreme Court’s big decision in Arthrex, which we wrote about here, many of us are wondering what the next steps will look like. We may know sooner rather than later. Today, the Federal Circuit issued a sua sponte order in pending appeals where one of the parties had appeared to raise an Appointments Clause challenge.
Supreme Court Preserves (Again) Inter Partes Review Despite Finding Constitutional Violation
To print this article, all you need is to be registered or login on Mondaq.com. The Supreme Court issued its long-awaited decision today in United States v. Arthrex, Inc., Nos. 19-1434, -1452, -1458. Although a majority of the Court held that Congress's statutory scheme violated the Constitution, the Supreme Court once again preserved the availability of inter partes reviews for challenging issued patents.
Supreme Court Preserves (Again) Inter Partes Review Despite Finding Constitutional Violation | JD Supra
The Supreme Court issued its long-awaited decision Monday in United States v. Arthrex, Inc., Nos. 19-1434, -1452, -1458. Although a majority of the Court held that Congress’s statutory scheme violated the Constitution, the Supreme Court once again preserved the availability of inter partes reviews for challenging issued patents. Still unknown is whether Arthrex will have any practical effect on practice at the Patent Trial and Appeal Board going forward.
CVSG In American Axle And Cases In General: What Does It Mean? A Q&A With Deanne Maynard
United States: CVSG In American Axle And Cases In General: What Does It Mean? A Q&A With Deanne Maynard 20 May 2021 by Brian R. Matsui and Deanne Maynard Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
CVSG in American Axle and Cases in General: What Does It Mean? A Q&A With Deanne Maynard | JD Supra
Some of the big news a couple weeks ago was the Supreme Court’s decision to invite the Solicitor General (SG) to file a brief expressing the views of the United States in American Axle, a Section 101 case involving an industrial process for manufacturing. This action—commonly referred to as a CVSG (Call for the Views of the Solicitor General)—provides a strong indication that the Supreme Court is seriously considering granting review in a case.
Last Week In The Federal Circuit (May 3-7): The Case Of The Missing Beds And Affirmative Misrepresentations - Intellectual Property - United States
United States: Last Week In The Federal Circuit (May 3-7): The Case Of The Missing Beds And Affirmative Misrepresentations 12 May 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Last week was Court week, so it was busy in the Federal Circuit with telephonic oral arguments. Despite all the activity, the Court still issued a dozen opinions, including two precedential ones.
Last Week in the Federal Circuit (May 3-7): The case of the missing beds and affirmative misrepresentations | JD Supra
Last week was Court week, so it was busy in the Federal Circuit with telephonic oral arguments. Despite all the activity, the Court still issued a dozen opinions, including two precedential ones. For our case of the week, we decided to focus in on a pretty rare question: how much fraud is required to reopen a patent judgment? For the answer, read below and take a look at our usual weekly statistics.
Revisiting Cancelled Oral Arguments
United States: Revisiting Cancelled Oral Arguments 23 April 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. It has been a little while since we took a look at what—from a statistics standpoint—went down at recent oral arguments (see last post here).
Revisiting Cancelled Oral Arguments | JD Supra
It has been a little while since we took a look at what—from a statistics standpoint—went down at recent oral arguments (see last post here). Since the Federal Circuit went remote, there was an initial wave of a high percentage of appeals that would have gotten oral argument pre-pandemic that were decided on the briefs instead—with several sessions having a 40% or more cancellation rate for cases originally scheduled for argument.
Will Your Appeal Have Argument Soon?
United States: Will Your Appeal Have Argument Soon? 09 April 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. There's a perception in the Federal Circuit bar that that Court has been scheduling cases for oral argument a bit quicker recently.
Will Your Appeal Have Argument Soon? | JD Supra
There’s a perception in the Federal Circuit bar that that Court has been scheduling cases for oral argument a bit quicker recently. Now, on some levels, it’s all relative—the Federal Circuit has always been pretty quick in getting cases to argument (see our sister blog Left Coast Appeals for some timing on the Ninth Circuit). But there definitely is a feeling that things are quicker now. So with nothing better to do over the Easter weekend, I decided to see if that perception is a reality.
Rehearing Revisited: Do Some Judges CFR More Often Than Others?
United States: Rehearing Revisited: Do Some Judges CFR More Often Than Others? 03 April 2021 by Michael F. Qian , Brian Matsui and Seth Lloyd Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. In a recent post, we took a look at data on rehearing petitions—specifically, the timing of calls for responses (CFRs).
Rehearing revisited: Do some judges CFR more often than others? | JD Supra
In a recent post, we took a look at data on rehearing petitions—specifically, the timing of calls for responses (CFRs). Today, we dig further into that data to see if we can identify judges whose panels CFR more often. As you may remember, for a rehearing petition to succeed in the Federal Circuit, the Court first needs to CFR. No response to a rehearing petition may be filed unless the Court orders one. A CFR thus signals that at least one member of the Court is interested in the petition.
Close Enough: Horseshoes, Hand Grenades, And Specific Personal Jurisdiction
United States: Close Enough: Horseshoes, Hand Grenades, And Specific Personal Jurisdiction 29 March 2021 by Grant J. Esposito and Brian Matsui Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. How close a connection does there need to be between a lawsuit and the defendant's in-state activities for specific personal jurisdiction to apply?
Close Enough: Horseshoes, Hand Grenades, And Specific Personal Jurisdiction | JD Supra
How close a connection does there need to be between a lawsuit and the defendant’s in-state activities for specific personal jurisdiction to apply? The Supreme Court issued a decision on that issue today in Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer.
Order Of Interest – Can You Challenge The Denial Of Institution Without Showing A Deprivation Of Life, Liberty, Or Property? - Intellectual Property - United States
United States: Order Of Interest – Can You Challenge The Denial Of Institution Without Showing A Deprivation Of Life, Liberty, Or Property? 17 March 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
Order of Interest – Can You Challenge The Denial Of Institution Without Showing A Deprivation Of Life, Liberty, Or Property? | JD Supra
Case: Mylan Labs. Ltd. v.
The Lifespan of a Rehearing Petition | JD Supra
You’ve lost your case before a Federal Circuit panel and you file a rehearing petition. When can you expect good news (or at least some news…)? Timing of rehearing decisions For a rehearing petitioner, the threshold positive sign to look for is a call for a response (or “CFR”). Under the federal appellate rules, a party can’t file a response opposing a rehearing petition unless the Court requests one. That request is a sign that at least one judge has some interest in the petition.
Last Week In The Federal Circuit (February 22-26): Who Needs Cross Examination? Issue Preclusion Before The PTAB
United States: Last Week In The Federal Circuit (February 22-26): Who Needs Cross Examination? Issue Preclusion Before The PTAB 03 March 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. All eyes are on Arthrex this week, right? So of course we decided to take a look at a Board decision, and one that-so says the dissent-creates a circuit split.
Last Week in the Federal Circuit (February 22-26): Who Needs Cross Examination? Issue Preclusion Before the PTAB | JD Supra
All eyes are on Arthrex this week, right? So of course we decided to take a look at a Board decision, and one that—so says the dissent—creates a circuit split. Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest. Precedential opinions: 3 Non-precedential opinions: 4 Rule 36: 1 Longest pending case from argument: SynQor, Inc. v.
Is Your Appeal More Likely To Be Affirmed Since The Court Went Remote? A Post Valentine's Day Definitely, Maybe…
United States: Is Your Appeal More Likely To Be Affirmed Since The Court Went Remote? A Post Valentine's Day Definitely, Maybe… 18 February 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Last week I took a look at affirmance rates—both in general and excluding Rule 36s (see It's Two Weeks After Your Argument, And You've Heard Nothing. What Does That Mean).
Is Your Appeal More Likely to Be Affirmed Since the Court Went Remote? a Post Valentine’s Day Definitely, Maybe… | JD Supra
Last week I took a look at affirmance rates—both in general and excluding Rule 36s (see It’s Two Weeks After Your Argument, And You’ve Heard Nothing. What Does That Mean). This week I decided to see what things have been like for cases submitted since the Federal Circuit went to telephonic arguments. My first thought was that the affirmance rates would be about the same for appeals during the current era of the telephonic argument compared to our overall numbers.
It’s Two Weeks After Your Argument, And You’ve Heard Nothing. What Does That Mean? | JD Supra
Since we started this blog, we have taken a look at win-loss percentages a number of times. Now that we recently updated our statistics (sortable, here), we took another look. This time we thought we’d add a twist to our calculations by answering the following question: how much do a party’s odds change once you remove Rule 36 affirmances?
It's Two Weeks After Your Argument, And You've Heard Nothing. What Does That Mean?
United States: It's Two Weeks After Your Argument, And You've Heard Nothing. What Does That Mean? 11 February 2021 Morrison & Foerster LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. Since we started this blog, we have taken a look at win-loss percentages a number of times. Now that we recently updated our statistics (sortable, here), we took another look.
Who Gets Oral Argument (Revisited): January Argument Recap/February Argument Preview | JD Supra
Out with the old, and in with the new: it’s Court week for the short February month, so we thought we’d revisit what happened at oral arguments last month and what’s happening now. First, the past: In the highly coveted first week of January arguments (who doesn’t love preparing for argument on New Year’s Day), the Court heard argument in 26 cases—having cancelled argument in 22 cases.
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